In New Jersey Family Court, Are Children of Married Parents Treated Differently Than Non-Married Parents?

September 05, 2013
By
Edward R. Weinstein

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As I wrote in my recent piece, “Are Palimony Claims Still Valid Under New Jersey Law?” over the past 20 years of my practicing as a New Jersey divorce
attorney, it is clear that less and less Americans are getting married.
My Google research clearly supports my theory. To that end, I have further observed and concluded
as a New Jersey child custody lawyer that children of marriage are treated
much differently than children born of “relationship” in New
Jersey family courts. As I shall discuss below, the children of divorce
are treated much better and justly than children of relationship.

The New Jersey Family Court system is very unique. Not only can families
contest custody in a divorce action (which is an “FM” docket
number), but they can also contest custody in a non-dissolution action
(an “FD” docket number). Now, before we go into the specific
dissimilarities between FM and FD cases, let’s take a look at the
legal history of New Jersey child custody laws.

What is the History of Children of Unmarried Parents in New Jersey?

Ever since 1907, New Jersey case law has dictated that a child born in
wedlock is assumed to be the lawful child of the husband and wife. However
pursuant to English common law, if the couple was not married, the child
born was considered an illegitimate child, the son of none—filius nullius. Since the child was not lawfully the child of the unmarried couple, he/
she had no legal rights. The child was not entitled to inherit property
or be supported by a father through child support payments.

Ultimately, the child was viewed as a bastard in the eyes of the law. In
these cases where illegitimate children were born, the mother almost always
retained sole custody of the children. However, New Jersey recognized
that this common law doctrine was insensitive, and officially abolished
it in 1986 in this case of
Matter of Estate of Calloway, 206
N.J. Super. 377 (App. Div. 1986).

In 1983 before the
Calloway case was decided, New Jersey began to repeal the common law doctrine.
On May 20th, the Parentage Act was enacted. The Act established the principle
that all children should be treated the same, regardless of whether they
were born to married or unmarried parents. Additionally, under the Act
the mother of an illegitimate child could now petition a court for child
support from the natural father.

How are FDs Treated Differently Than FMs?

Although the Parentage Act and
Calloway decision were efforts to equalize children of married and unmarried couples,
litigation procedures involving the children are still governed by different
court dockets as previously mentioned. One distinction between FD and
FM cases involves child custody. In FM cases, the married parents are
required to attend a Parent Education Seminar. Pursuant to
N.J.S.A. 2A: 34-12.3(c), the purpose of the program is to “promote cooperation between the
parties and to assist parents in resolving issues which may arise during
the divorce or separation process, including, but not limited to the following:”

Understanding the legal process of a divorce and its associated costs

Understanding monetary support obligations for children

Understanding how to adjust and interact with the children during and after
the divorce

Understanding how children may react to the divorce and how to respond

Understanding how to help children cope with the divorce

Understanding how to help children adjust after the divorce

Understanding that cooperation is probably not necessary if the case involves
domestic violence

On the contrary, unmarried parents in FD cases are not legally required
to attend such a seminar. In FD cases involving custody disputes, the
court can require that the parents attend a Parent Education Seminar,
but it is not always the outcome. If children of married and unmarried
parents are intended to be treated equally, then why is custody over them
handled differently depending on their parent’s marital status?

Another way in which FD cases are different than FM cases is when it comes
to child support. In FM cases, the parent that is applying for child support
must fill out a case information statement. Yet, in FD cases a mere summary
of income and assets of the parent is allowed to be presented to the court
for evaluation. This is much more informal and less official. While both
case types do require the applying parent to disclose some of his or her
financial information, FD cases do not require nearly as much to be disclosed
as FM cases do. This can be perceived as unfair as well because typically
the more financial information disclosed, the more fair and equitable
the child support award will be. Just because a couple is not married
does not mean that they do not have financial assets and liabilities.

Furthermore, FD and FM cases are procedurally distinct. Pursuant to New
Jersey Court Rule 5:4-3(a), in FM cases a party properly served with a
complaint has thirty-five days to file an answer or general appearance.
Contrarily, in FD cases the Family Division’s Non-Dissolution Operations
Manual, 1112 Counterclaim, states that a counterclaim may be filed before
a hearing has been held on the original complaint. Additionally pursuant
to Rule 5:4-3(b), an answer is not required to be provided. Moreover,
if a parent in an FD case wants an opportunity to be heard in court, he
or she is not guided by any notice or filing requirements. This increases
the risk of being surprised in court because a party is not provided notice
of what is about to happen.

As my office handles both FM and FD New Jersey child custody, child support
and related matters, please never hesitate to
give us a call if you have any questions or are seeking advise.

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Nothing on this site should be taken as legal advice for any individual
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